Majority
p. 332Levi Mead against Haws, Pultney and Colver. NEW YORK, May, 1827.
Headnote
a warrant justice’s^ court againsl “ John Doe, the person carrying non ’’^tended of Levi Mead, it issued! in the act of car-non; and for Mended! Beuifder ITfaíá that Mead tain111 trespass persons eerned in the surestThe arrest of a person by a wrong cannot be justiwas’the person intended, unshown that he ^5 name as the other.
Assault and battery, and false imprisonment; tried at the Columbia circuit, October 7th, 1824, before Wal^qRTH, C. Judge.
At the trial, the plaintiff proved that, as he was leading a horse at the carriage of a cannon, which he and others were taking from Hudson to Taghanick, he was arrested by Haws, the defendant, a constable of the city of Hudson, delivered him into the custody of another of the defendants, Colver. The arrest was by virtue of a warrant favor of Pultney, the other defendant.
The defendants offered to prove that the plaintiff, with others, having taken a brass cannon from the custody of defendant, Pultney, at Hudson; and being in the act *of carrying it off, Pultney went to the clerk’s office of the oourt Hudson, and took out a warrant, commanding to “ take the body of John Doe, the person car- • . a. rying off the cannon,” to answer Pultney in a plea of trespasS- That on this warrant the plaintiff was arrested: he .L 7 having been in the act of carrying off the cannon, at and from the time of taking out the warrant,' to the time of the arrest. On objection, the judge excluded the evidénce.
Verdict for the plaintiff for $35, pursuant to the charge of the judge.
E. Williams, for the defendant, moved for a new trial.
K. Miller, contra,
cited 8 East, 328; 2 Taunt. 399; 2 Campb. 271; 3 id. 110; Cowen’s Treat. 328.
The judge was correct. It was decided in Shadgett v. Clipson, (8 East, 328,) that the defendant could not justify an arrest of the plaintiff by a wrong name, though he was the person intended to be arrested, unless it was shown that he was known by one name as well as the other. There was no offer to show
p. 333
here, that the plaintiff was known as well by the name of John Doe as Levi Mead. The same principle is recognized in various other cases; (2 Campb. 270; 3 id. 110; 6 T. R. 234;) and, particularly, in the late case of Griswold v. Sedgwick, (6 Cowen, 456,) in which the subject was fully examined, and the authorities collected and considered by this court. The motion for a new trial must be denied.
New trial denied.[1]
[1] [1] See Waterman’s Arch. Cr. Practice & Pl. tit. Arrest; Barb. Cr. Law, p. 525.